'Rape shield' laws challenged by Tyson

WASHINGTON -- Former heavyweight boxing champion Mike Tyson, now in prison for raping an 18-year-old beauty contestant, is seeking to turn his appeal to the Supreme Court into a sweeping constitutional attack on laws that protect rape victims' sexual privacy.

Those so-called "rape shield" laws, now in effect in most states across the country, are designed to encourage rape victims to report being attacked by shielding their own sexual backgrounds during the trial. Many of those laws emerged in the 1970s as part of a nationwide effort to reform sex crimes statutes.

Before those laws existed, defense lawyers in rape cases routinely offered evidence of prior sexual activity to bolster the argument that the woman had consented this time, too.

The laws were enacted in a fast-moving campaign led by an unusual alliance of feminists and law enforcement forces.

Increasingly, however, "rape shield" laws are being challenged in state and federal court, and the challenges are sometimes succeeding. The Indiana law -- the one at stake in Tyson's case -- was ruled unconstitutional in August by a federal appeals court for the way it was used by prosecutors in a child sexual assault case. That outcome, though, does not apply to Tyson's case.

"To me, this is one of the cutting-edge issues of the '90s," says famed criminal defense lawyer Alan M. Dershowitz, who is handling Tyson's appeal and who prepared the broadside attack on rape victim privacy laws.

The justices are expected to take their first look at Tyson's appeal sometime within the next few weeks and determine whether to even hear the case. An Indiana appeals court upheld his conviction in August, and Tyson then took his case on to the Supreme Court.

The specific issue before the court is whether a "rape shield" law denies an individual accused of sexual assault of a chance to challenge his accuser and prepare a full legal defense -- rights protected by the Sixth Amendment. "We think this is a very good case" with which to put that issue directly before the highest court, Mr. Dershowitz said.

The court has never ruled directly on the constitutionality of those laws but has several times passed up the issue -- once in a Maryland case.

Maryland is one of 25 states that provide the most protection for rape victims' privacy. But nearly all of the states have such laws. Congress in1978 passed a federal law assuring sexual privacy for victims in federal cases, and there is such a law for military courts, too.

Tyson was sentenced to six years in prison after being convicted of raping Desiree Washington, a contestant in a Miss Black America contest, in his hotel room in Indianapolis in July 1991. He made a guest appearance at the beauty contest and bluntly told her that he wanted to have sex with her. The rape allegedly occurred on a date that night.

Ms. Washington testified that she was "not like" the other women who dated Tyson and did not consent to have sex with him. The prosecution portrayed her as a strongly religious person who was sexually innocent.

To counter that, Tyson's trial lawyers sought to show that Ms. Washington had engaged in sex before and that her father had reacted violently to her earlier romances -- a suggestion that would give her a reason to lie about having sex with Tyson.

The trial judge -- a former prosecutor of sex crimes cases -- barred that evidence, relying on Indiana's shield law. Tyson's appeal to the Supreme Court argues: "The state, knowing that Tyson's hands were tied [by the judge's ruling], went so far as to imply that Washington was a virgin when she arrived in Indianapolis, and, but for Tyson, would have returned home 'the same girl.' "

Tyson's appeal also contends that prosecutors, under an unusual Indiana procedure, had the power to choose the judge who would try the case and chose the former prosecutor to guarantee the best rulings on the sexual conduct issues.

However, the key part of the Tyson appeal is the attack on "rape shield" laws. Such laws, the appeal argues, "cannot, consistent with the Constitution, exclude evidence that would demonstrate that the alleged victim had a motive to lie, or that would counter the state's own efforts to paint a false vision of ravished innocence."

The Supreme Court's first-ever ruling on a "rape shield" law came in 1991, but that was a narrow decision permitting states to require defense lawyers in rape cases to give advance notice, before trial, if they want to offer evidence about the accuser's sexual past.

If the court agrees to hear the case, a final ruling would be expected before summer. The first sign of whether the court has any interest in the case would be a request to the state of Indiana to file a formal answer to Tyson's appeal. The state had a right to reply if it wished but passed that up because, a spokeswoman said yesterday, "we don't believe the issues in the case are substantial enough."

MARYLAND'S LAW

Maryland's "rape shield" law, enacted in 1976, generally bars the defense from offering any evidence in a rape case about the victim's sexual history, but does allow a few exceptions.

A judge has the option of allowing the following kinds of evidence, but only if it would not result in humiliating or harassing the victim:

L * Prior sexual activity with the person accused of the rape.

* A victim's alleged "ulterior motive" for making the accusation.

* A victim's alleged lying on the stand -- if the prosecutor has first made the victim's sexual history an issue.

The trial judge must first consider the evidence in a closed session before allowing a jury to hear it.

The constitutionality of Maryland's law was upheld by the state Court of Appeals in 1984. The Supreme Court refused to review that ruling.